A.     Frequently Asked Questions Involving Florida Probate.

B.    The Revocable Living Trust in Florida

C.     Florida Probate Litigation Information

D.     Florida Trust Litigation Information

E.     Estate Planning, Probate, Trust and Guardianship Links of Interest

F.     Special Needs Trust Planning and Administration

The Gainesville Probate Lawyer is a Florida law firm with experienced attorneys and lawyers who handle Florida estate planning, Florida probate matters, trust administration, and guardianship matters in probate courts throughout the State of Florida, involving the transfer of wealth.

We handle probate matters, formal probate administration, summary probate administration and ancillary probate administration throughout the State of Florida, including Gainesville, Alachua County, and the surrounding areas. 

The founding attorney of the Gainesville Probate Lawyer is C. Randolph Coleman, a Florida attorney with more than 30 years experience in the Florida probate courts.  Mr. Coleman is AV rated by Martindale-Hubbell and is a member of the Bar Registry of Preeminent attorneys, which lists only those select lawyers and law firms who have earned the A-V Rating in the Martindale Hubbell Law Directory and have therefore been designated by their colleagues as pre-eminent in their field.

Mr. Coleman also has received a rating of 10.0 out of 10.0, Superb, rating from AVVO.com

If we can assist you with your probate matter in Gainesville, Alachua County, or surrounding areas, or anywhere in Florida, please contact us at (904) 448-1969, or toll free at (866) 510-9099, or email us at Info@TheGainesvilleProbateLawyer.com.

Fee arrangements for the handling of Florida probate and estate planning matters are typically based on a fixed fee determined by agreement between the attorney and the client, for estate planning, trust and probate administration matters.  Most often fee arrangements for representation in contested, adversarial or litigation matters, whether probate, trust or guardianship related, are based on hourly rates and the hours expended on behalf of the client.  Occasionally, representation in a contested, adversarial or litigation matter may be undertaken on a contingent fee basis, where there is no fee if there is no recovery.

If you would like to discuss the specifics of your individual situation, please contact the experienced estate planning, probate, trust, and probate litigation attorneys by calling toll free 866-510-9099, or email us at Info@TheGainesvilleProbateLawyer.com .

FAQs for Probate in Florida  

Probate in Gainesville, Florida is governed by chapters 731-735 of the Florida Statutes, known as The Florida Probate Code.

1. WHAT IS PROBATE IN GAINESVILLE, FLORIDA?  

Florida probate is a court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.

Florida probate law through the Florida Probate Code and the Florida Rules of Probate, establishes two types of probate administration:

1. Formal probate Administration, with which most of this information deals and

2. Summary Probate Administration, which generally is available if the assets of the estate that are not exempt from creditor's claims do not exceed $75,000 (in Florida the homestead usually is exempt from creditor's claims and therefore the value of the homestead is not included in the $75,000 limitation), or the decedent has been dead for more than 2 years.

Florida law of probate also establishes a non-administration proceeding called "Disposition of Personal Property Without Administration."

If you need assistance with a Florida probate administration in a Florida court of probate in Gainesville, or Alachua County, Florida, whether a formal administration or a summary administration, please contact us toll free at 866-510-9099, or email us at Info@TheGainesvilleProbateLawyer.com   (Back to Top)

2. WHAT ARE FLORIDA PROBATE ASSETS? 

Generally, Florida probate assets are those assets in the decedent's sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example:

• a bank account in the sole name of a decedent is a Florida probate asset and is subject to probate administration, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a Florida probate asset and is not subject to probate in Florida;

• a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a Florida probate asset and therefore not subject to probate in Florida, but a policy payable to the decedent's estate is a Florida probate asset and will be subject to probate administration in the Florida court of probate;

• real estate titled in the sole name of the decedent or as a tenant in common with another person, is a Florida probate asset (unless it is homestead) and therefore subject to probate, but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a Florida probate asset and will not be subject to probate administration in the Florida probate court;

• real property owned by husband and wife as tenants by the entirety is not a Florida probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.

This list is not exclusive but is intended to be illustrative of the different assets subject to probate in a Florida probate administration. (Back to Top)

3. WHY IS FLORIDA PROBATE NECESSARY? 

Probate is necessary in Florida to wind up the affairs the decedent leaves behind. It ensures that all of the decedent’s creditors are properly paid. Florida probate also serves to transfer probate estate assets from the decedent's individual name to the proper beneficiary of the Florida probate estate. Florida has had probate laws in force since becoming a state in 1845. The Florida law of probate, which includes the Florida Probate Code and the Florida Probate Rules, provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid last will and testament.

If you need an experienced and qualified Florida probate lawyer for a probate estate in Gainesville or Alachua County, Florida, please call us toll free at 1-866-510-9099.

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4. WHAT IS A LAST WILL AND TESTAMENT? 

A last will and testament is a writing, signed by the decedent and witnesses, which meets formal requirements set forth by Florida probate law and the Florida probate codes. A last will and testament usually designates a personal representative to administer the Florida probate estate and names beneficiaries to receive probate assets. A last will and testament can also do other things, including establishing a testamentary trust and designating a trustee, as well as appointing the guardian of minor children.

To the extent a last will and testament properly devises Florida probate assets and designates a personal representative of the probate estate, the last will and testament controls over the automatic provisions set forth under Florida probate law of intestacy. In there no will and testament, or if the estate is administered without a will because the last will and testament fails in any respect under the Florida probate rules and probate codes, Florida intestacy law designates the beneficiaries of the probate assets and designates the way to select the personal representative for the intestate probate estate.  (Back to Top)  

5. WHAT HAPPENS TO FLORIDA PROBATE ASSETS IF THERE IS NO WILL AND TESTAMENT?  
Contrary to the belief of some, when there is a probate estate without a will, the decedent’s probate assets are not turned over to the State of Florida, unless no intestate heirs can be found. If there is no will and testament, the probate assets of the decedent subject to the Florida court of probate will be distributed to the intestate heirs as follows:

• Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all of the probate property.

• Surviving spouse and lineal descendants.

            1. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half of the Florida probate estate assets.

            2. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half of the probate estate.

• No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.

• No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The Florida probate law provides for further disposition if the decedent is survived by none of these.

• Exceptions to Above. The above provisions are subject to certain exceptions for exempt Florida homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding Florida exempt homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the exempt Florida homestead, with the lineal descendants of the deceased spouse receiving the Florida exempt homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the exempt Florida homestead outright. Under the Florida law of probate, a surviving spouse, when there are lineal descendants can elect to convert the life estate into a 50% interest in the homestead property.

If you need the assistance of an experienced Florida probate lawyer to represent you in an intestate probate estate proceeding in Gainesville or Alachua County, Florida, please call us toll free at 1-866-510-9099.

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6. WHO IS INVOLVED IN THE FLORIDA PROBATE PROCESS? 

While there may be others, the following is a list of persons or entities often involved in the probate process:

• Clerk of the Circuit Court for Alachua County, Florida, or the county in which the decedent resided.  The Alachua County Clerk of Court probate office is located at 201 E. University Avenue, Gainesville, FL 32601 and maintains all probate court records (See Question 7).

• Circuit Court for Alachua County, Florida, or the county in which the decedent resided, which is the Florida court of probate (acting through a Circuit Court Judge, See Question 8).  The Circuit Court, for Gainesville and Alachua County probate matters is located at 201 E. University Avenue, Gainesville, FL 32601.

• Personal Representative ("executor") of the Florida probate estate (See Questions 9 through 11).

• Florida probate attorney for the Personal Representative (See Question 12).

• Claimants (the estate's creditors) (See Question 13).

• Internal Revenue Service (IRS) (See Question 14).

• Florida Department of Revenue (See Question 15).

• Surviving Spouse and Children (See Question 16).

• Other Beneficiaries of the probate estate (See Question 17).

• Trustee of Revocable Living Trust (See Question 21).  (Back to Top)

7. WHERE ARE PROBATE PAPERS FILED IN FLORIDA?  

Probate papers are filed with the Clerk of the Circuit Court, 201 E. University Avenue, Gainesville, FL 32601, for Alachua County, or in the county where the decedent lived at the time of the decedent's death. A probate filing fee must be paid to the probate clerk to commence the Florida probate administration. The probate clerk assigns a file number and maintains a docket sheet which lists all probate court forms, probate records, and other probate papers filed with the probate clerk for that probate administration.  (Back to Top)

8. WHO SUPERVISES THE FLORIDA PROBATE ADMINISTRATION? 

A Circuit Court Judge in Gainesville, Alachua County, Florida presides over Florida probate proceedings in Gainesville, or in the county where the decedent resided at the time of death. The Florida probate judge appoints the personal representative ("executor") and issues "letters of administration," also referred to simply as "letters" or "letters testamentary." This Florida probate court document shows to the world the authority of the personal representative to act on behalf of the Florida probate estate. The probate Judge also holds hearings when necessary and resolves all questions of Florida law raised during the probate administration of the estate by entering written directions called "orders" that become part of the probate records. (Back to Top)  

9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO? 
 
The personal representative is the person, bank or trust company appointed by the Florida probate court to be in charge of the administration of the probate estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix."

The personal representative of the probate estate is directed by the Florida probate court to administer the probate estate and maintain probate records pursuant to Florida probate law. The personal representative is obligated to:

• Identify, gather, value and safeguard probate assets, and provide the court of probate and all interested persons with a probate inventory.

• Publish a "notice to creditors" in a local newspaper, giving notice to file claims and other probate court forms or probate papers relating to the probate estate with the Florida probate court.

• Serve a "notice of administration" on specific persons, giving information about the probate estate administration and giving notice of requirements to file with the probate court any objections or other probate court forms relating to the probate estate.

• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify them of the probate timeline by which their probate claims forms must be filed with the Florida probate court office.

• Object to improper claims and defend lawsuits brought on such claims against the probate estate.

• Pay valid claims against the probate estate.

• File tax returns, including, if necessary the Federal Estate Tax Return (Form 706).

• Pay taxes of the probate estate from the probate assets.

• Employ necessary probate professionals, such as a Florida probate attorney, to assist the personal representative with the court of probate administration.

• Pay administrative expenses.

• Distribute Florida statutory amounts or assets to the surviving spouse or family as required by the Florida law of probate.

• Distribute assets to beneficiaries of the probate estate.

• Close probate administration with the Florida court of probate.  (Back to Top)

10. WHO CAN BE A PERSONAL REPRESENTATIVE IN FLORIDA? 

• The personal representative could be an individual, bank, or trust company, subject to certain restrictions provided by the Florida law of probate.

• An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relatives, can serve as personal representative of the Florida probate estate.

• A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative of the Florida probate estate. (Back to Top)

If you need the assistance of a Florida probate attorney as personal representative of a probate estate in Gainesville or Alachua County, Florida, please call us toll free at 1-866-510-9099.

11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE? 

• If the decedent left a valid last will and testament, the designated personal representative nominated in the last will and testament has preference to serve.

• If the decedent had no will and testament, the surviving spouse has preference, with second preference to the person selected by a majority in interest of the heirs of the probate estate under the Florida law of probate.  (Back to Top)

12. WHY DOES THE PERSONAL REPRESENTATIVE NEED A FLORIDA PROBATE ATTORNEY? 

In almost all instances the personal representative must be represented by and needs the legal advice of a Florida probate lawyer or attorney . Many legal issues arise under Florida law, even in the simplest Florida probate estate administration.

The Florida probate attorney for the personal representative provides legal advice to the personal representative on rights and duties under the Florida probate law and the probate process, and represents the personal representative in probate estate proceedings. The probate attorney for the personal representative is not the probate attorney for the beneficiaries.

A provision in a last will and testament mandating that a particular Florida probate attorney or law firm be employed as attorney for the personal representative is not binding on the personal representative under the Florida law of probate.

If you need a Florida probate lawyer to assist you in the administration of a Florida probate matter, please contact us toll free at 866-510-9099, or email us at Info@TheGainesvilleProbateLawyer.com.   (Back to Top)  

13. HOW ARE PROBATE ESTATE CREDITORS HANDLED?   

Prior to commencement of Gainesville, Florida probate proceedings, a creditor can file a Florida probate court form called a caveat with the Florida probate court. Upon publication of notice to creditors a creditor or other claimant may file a probate court document called a "statement of claim" against the probate estate with the Clerk of the Circuit Court where the probate estate is being administered. This claim is generally required to be filed with the probate court within the probate timeline of the first three months after publication of a prescribed notice in a countywide newspaper. This three-month probate timeline period is often referred to as the "non-claim period." The personal representative or any other interested person may file with the probate court an objection to the statement of claim, after which the claimant must file a separate independent lawsuit against the probate estate to pursue the claim.

The personal representative is required to use diligent efforts to give actual notice of the Florida probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file probate court claims forms with the Florida court of probate. A valid claimant is not viewed as an adversary of the personal representative in the probate process but rather must be treated fairly as a person interested in the probate estate until the claim has been satisfied or otherwise disposed of by the Florida court of probate. 

If you need the assistance of an experienced Florida probate lawyer to file a creditor's claim in a Gainesville or Alachua County, Florida probate estate proceeding, please call us toll free at 1-866-510-9099.   (Back to Top)  

14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED? 

For federal income tax purposes, death triggers two things. It ends the decedent's last tax year for purposes of filing a federal income tax return, and it establishes a new tax entity, the "estate."

The personal representative may be required to file the following returns, depending on income of the decedent, income of the probate estate and size of the probate estate:

• Final Form 1040 federal income tax return, reporting income for the decedent's final tax year.

• One or more Form 1041 federal income tax returns for the probate estate, reporting income for the probate estate.

• Form 709 federal gift tax return(s), reporting certain gifts made by the decedent prior to death.

• Form 706 federal estate tax return (the "death tax"), reporting the gross estate and deductions, depending upon the value of the gross estate assets.

The personal representative may be required to file other tax returns during the probate process. Additionally, the personal representative has the responsibility to deal with issues arising from tax years prior to the decedent's death (including tax returns that were filed by the decedent or that should have been filed).

The personal representative has the responsibility to pay amounts due to the IRS from the decedent and the probate estate and may be personally liable for those taxes. If a federal estates taxes return is required to be filed, an estate tax closing letter is necessary to clear title to Florida real property, and in some instances in order to close the probate administration with the Florida probate court. (Back to Top)   

15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED? 

The personal representative is required to send a copy of the probate inventory to the Florida Department of Revenue. If a federal estate tax return is not required to be filed with the IRS, then the personal representative is required to record in the public records (and file in a formal estate administration) an Affidavit of No Florida Estate Tax Due. If a federal estates taxes return is required to be filed with the IRS, then the personal representative is required to file a Florida estate tax return, Form F-706, with the Florida Department of Revenue."

Regarding Florida's intangible tax, the Florida Department of Revenue may review the probate inventory to determine whether the probate estate, or the decedent while alive, failed to file a required intangible tax return or to pay intangible tax.

For probate estates required to file a Florida estates taxes return, a nontaxable certificate or a tax receipt from the Florida Department of Revenue is required in order to clear title to Florida real property and in order to close a formal probate administration.   (Back to Top)

16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE FLORIDA PROBATE ESTATE? 

The Florida law of probate and public policy protects the surviving spouse and certain surviving children from total disinheritance in the probate process. Absent a pre-marital or post-marital agreement to the contrary, a surviving spouse may have exempt Florida homestead rights, elective share rights, family allowance rights, and exempt property rights. In addition, certain surviving children of the decedent may also have Florida exempt homestead rights, pretermitted child rights, family allowance rights, and exempt property rights. The existence and enforcement of these rights is often best handled through the probate process with legal advice from an experienced Florida probate attorney. 

If you need help obtaining your spousal elective share, or your Florida exempt homestead rights, please contact us toll free at 866-510-9099, or email us at Info@TheGainesvilleProbateLawyer.com 

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17.  WHAT RIGHT DO OTHERS HAVE IN THE FLORIDA PROBATE ESTATE?   

Under Florida probate law, as with most other states' probate laws, a decedent may entirely disinherit other potential beneficiaries of the probate estate. (Back to Top)

If you need the assistance of an experienced Florida probate lawyer in the administration of a probate estate in Gainesville, Florida, or throughout the State of Florida, put our 30+ years of experience in the Florida probate courts to work for you.  Please contact us toll free at 866-510-9099, or email us at Info@TheGainesvilleProbateLawyer.com.

This material represents general legal informatoin about Gainesville, Florida probate law. Since the Florida probate law is continually changing, some provisions may be out of date. It is always best to consult an experienced Gainesville, Florida probate lawyer or attorney about your legal rights and responsibilities regarding your particular case.  If we can assist you with your Florida probate, please contact us toll free at 866-510-9099 or by email at Info@TheGainesvilleProbateLawyer.com 

Legal Notice and Disclaimer. The materials within this website are for informational purposes only. This information does not constitute legal advice and should not be relied upon by any individual. Communication of this information is not intended to create, and receipt does not constitute, the establishment of an attorney-client relationship. Internet users and readers should not act upon this information without first seeking professional legal counsel for your particular circumstances. The information on this website is provided only as general information which may or may not reflect the most current legal information.